CIA Hit Teams: Who’s In Charge Here?

Revelations of a secret CIA plan to knock off al Qaeda leaders has refueled burning debates in the United States over the proper tools for combating terrorism — and who should control how and when those tools are used.

But other legal experts say that the technical definition of “assassination” is limited to targeting political leaders — such as the CIA’s efforts against Castro during the Cold War.

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“Killing private persons overseas is a garden variety murder … it has nothing to do with international law, and it’s not an assassination,” said David Rivkin Jr., an attorney who served in the George H.W. Bush White House.

Rivkin pointed to the 1985 sinking of a Greenpeace ship in New Zealand by French intelligence agents. A photographer died in the incident. But when New Zealand prosecutors caught some of the agents involved, Rivkin noted, they charged them with murder — not with a war crime.

In the same way, some legal experts say, any U.S. operation against a terrorist overseas might likewise violate local murder laws — but would not run afoul of prohibitions against assassination.

“It’s all about preventing the U.S. government from engaging in regime change in other countries. Targeted killing is not regime change,” said Amos Guiora, professor of law at the University of Utah, who wrote about the issue in Foreign Policy. “Assassination is political leaders. Bin Laden ain’t a political leader. He’s a terrorist.”

There’s another wrinkle: Some legal experts say the authorization to use force issued by Congress after the Sept. 11 attacks created a de facto state of war with Al Qaeda, making much of the above moot — because in war, it’s perfectly acceptable to target and kill enemy leaders.

“In non-wartime you can’t use assassination as a tool of statecraft,” said Allen Weiner, a senior lecturer at Stanford Law School. “In wartime, it’s permissible to kill people. That’s what war is.”

Cohn and some other analysts say those drone strikes are also war crimes under international law. But many others argue that the post-9/11 “state of war” with Al Qaeda legalizes such attacks as acts of war — although not all agree that’s a good thing.

“When you not only have war but the battlefield is defined as every square inch of the planet … then any time you’re trying to kill Al Qaeda, anybody associated with Al Qaeda, by any means, even in the United States, that’s an act of war and its legal,” said Bruce Fein, an associate deputy attorney general under President Ronald Reagan. “My view is it’s preposterous.”

Who is supposed to be deciding what constitutes a legal act of killing in what kind of war? That gets to the other debate reignited by the Panetta revelation: whether the CIA should have briefed members of Congress on their plans.

Some analysts agree, but others say it does not appear that the CIA’s plan ever reached the level of activity that would require Congress to be briefed under the act. The Bush administration also may have concluded that the proposed killings of Al Qaeda leaders would have been military acts of war, not intelligence operations subject to the Act, and therefore were exempt from Congressional oversight.

At its heart, the debate is about something much broader than one CIA program, legal experts from both ends of the political spectrum agreed: the question of who, in this confusing new world of terrorists and counter-terrorists, is really in charge. The executive branch? The legislative? The judicial? Or some combination?

What are the rules? And why, nearly a decade after the Sept. 11 attacks, are they still unclear? Some analysts say today’s confusion stems from hasty decisions made in the aftermath of Sept. 11.

“The legal system, the people, the politicians, just said we’re at war — without ever considering the implications of that,” Fein said. “If you want to place among the branches who caused all the screw up, it’s Congress. Because they did nothing … They have all the responsibility to make the rules clear. They didn’t do a damn thing.”

Other analysts say just the opposite: that nine years after the attack on New York, politicians are allowing partisan distractions to interfere with the clear decisions made in 2001.

“It was a lack of enduring political courage on the part of Congress,” Rivkin said. “If anything, this underscores how difficult it is to get Congress as an institution pinned down to its original position in a time of war.”

If anything positive comes out of the current brouhaha, Guiora said it might be this conversation: a much-delayed national discussion over who, exactly, is calling the shots.

“One of the prime takeaways of the Bush administration is the failure of separation of powers and checks and balances and what that can lead to,” he said. “We have not had a real debate on who needs to take the lead in counter terrorism — and who needs to restrain the actor.”

Weigh in: Should the U.S. be hunting down and killing individual terrorists overseas? And who makes the decision?